The Need to Develop Specific Legislation Addressing Sexting among Minors

Consensual sexting among minors is relatively common in North Carolina – and can result in devastating criminal charges. Many North Carolina teenagers are unaware that sexting can lead to child pornography charges. Fayetteville-resident Cormega Copening was one such teenager. In 2014, the police discovered nude photos of the 16-year-old and his girlfriend on his cell phone. Cumberland County authorities charged Copening with 5 counts of sexual exploitation of a minor for making and possessing nude photographs of himself and his girlfriend. By the same token, his girlfriend was charged with 2 counts of sexual exploitation of a minor for making and possessing photographs of herself.15 If the Cumberland County District Court Judge had not dismissed the charges, the two teenagers would have had to register as sex offenders.11

Retrieved from Pixabay.

What Is Sexting?

Sexting does not have a singular definition. The definition varies due to disagreement among academics and researchers based on the content of a sext, the mode of transmission of the sext, and how narrow or broad to make the definition. For the purpose of this article, we will define sexting as “the sending or forwarding of sexually explicit photographs or videos of the sender or someone known to the sender via cell phone.”10

Prevalence

Research shows that sexting is a prevalent act among minors. Some factors that impact the prevalence of sexting are age, perception of approval for sexual behavior, intent to engage in sexual behavior, emotional awareness, self-esteem, previous sexting behavior, drug/alcohol use, and the relationship between the sender and receiver of the sext. The prevalence varies based upon the parameters of the research, such as the purpose, location, and sample, but sexting is prevalent nonetheless.

One in three 14-24 year olds engaged in some form of sexting. Sexting prevalence is higher among young adults (19%) than teens (7%).5

4% of cell-owning teens ages 12-17 said they had sent sexually suggestive nude or nearly nude images of themselves via text messaging, while 15% had received them.9

22% of early risk adolescents (ages 12-14 years) reported sexting. They had higher perceptions of approval for sexual behavior from parents, peers, and the media, higher intentions to engage in sexual behavior, lower emotional awareness, and lower self-esteem.8

Sexual behaviors among 13 to 17 year olds were associated with higher odds of having sexted in the past year. Low self-esteem and drug/alcohol use were positively associated, with having sexted.16

The three main scenarios for sexting are : 1) the exchange of images solely between two romantic partners; 2) exchanges of images between partners that are shared with others outside the relationship and 3) exchanges between people who are not yet in a relationship, but at least one person hopes to be.9

In summary, teens do sext. The prevalence varies based on the research being done, but the research does show that teens sext. Based on this knowledge, a considerable number of teenagers could face legal sanctions if their sexts were found and the state pressed charges.

Why Do Young People Sext?

Young people sext based on peer relationships and how they will be perceived. Adolescent behavior, problem solving, and decision making differs from that of adults in that it is guided more by the amygdala than the frontal cortex. The amygdala is responsible for emotional reactions, and develops early in the brain. The frontal cortex continues to develop into adulthood. This region is responsible for judgment in decision making.4 Following this further, teens make decisions based upon the area of the brain responsible for emotional reactions rather than judgment in decision making. Consequently, they can make decisions without fully analyzing the consequences of their actions, such as the possibility of the court pressing child pornography charges upon a teen for sexting.

Furthermore, peer relationships also influence sexting behavior. Young people are more likely to engage in sexting if peers approve of sexting and sexual behavior.13 If a teen’s peers approve of sexting, then a teen is more likely to sext. In a survey from the National Campaign to Prevent Teen and Unplanned Pregnancy, the reasons teens ages 13-19 gave for sending sexually suggestive content were:

To be fun or flirtatious;

As a sexy present;

In response to sexually suggestive content they received;

As a joke;

To feel sexy; or

Felt pressured.12

In short, teens chose to sext based upon their peers’ perception of sexting. Young people’s brains are still developing, and have not yet fully matured. Hence, teenagers should not be judged on the same level as adults.

Retrieved from Association for Psychological Science

Legal Implications

Legal sanctions against sexting vary from state to state. North Carolina has no specific law regulating sexting among minors. Legal sanctions against sexting have therefore fallen under child pornography laws. Under these laws, minors who are found sexting can be charged with sexual exploitation of a minor. This offense falls under three degrees of sexual exploitation:

First degree sexual exploitation of a minor-An individual “uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity.” Violation of this law will result in a Class C Felony.1

Second degree sexual exploitation of a minor-An individual produces, duplicates, or shares “material that contains a visual representation of a minor engaged in sexual activity.” Violation of this law will result in a Class E Felony.2

Third degree sexual exploitation of a minor-An individual knowingly “possesses material that contains a visual representation of a minor engaging in sexual activity.” Violation of this law will result in a Class H Felony.3

In terms of sexting, the legal system can charge a minor with a felony for producing, possessing, and sharing a sext, regardless of whether the sext portrays the minor in question or another minor engaging in sexual activity. The consequences of a teen being charged with a felony for sexting would be devastating. While there are few convictions, the fact is when faced with a felony charge, a defendant will plea down to any lesser charge.

Typology of youth-produced sexual image cases known to law enforcement. Retrieved from the Official Journal of the American Academy of Pediatrics.

The Issue

Child pornography laws unjustly criminalize minors who consensually exchange nude photographs by requiring them to register as sex offenders, which impede upon the opportunities they have during their adulthood. The legal sanctions against sexting among consenting minors are not equitable with the act of sexting. For example, Cormega Copening faced felony charges for consensually exchanging nude photographs with his girlfriend. If the charges had not been dropped, Copening would have had to register as a sex offender. The Sex Offender Registration Program would restrict Copening in terms of where he could work and live based upon his proximity to children, and his acceptance by the community. The program would also require Copening to report to the sheriff’s office every six months, or if he planned on moving or changing jobs.14 For further discussion on sex offender restrictions read Sexual Offender Laws and Prevention of Sexual Violence or Recidivism.

Can’t Sexting Be Dangerous? Can It Go Wrong?

A minor who sexts will receive a harsher punishment than a minor who purposefully discloses private images with the intent to harass, intimidate, or terrorize. Sexting is dangerous when it becomes revenge porn. The worst case scenario for teen sexting is the disclosure of an explicit image with the intent to harm or humiliate the teen depicted in the image. General Statue § 14-190.5A, also known as the Revenge Porn Law, outlines legal sanctions for revenge porn. The Revenge Porn Law protects “persons who are photographed, videotaped, or recorded without their consent from having his or her image disclosed.”7

The Revenge Porn Law has a more lenient charge for minors than the laws used to charge for consensual sexting. A minor who violates the revenge porn law for the first time will be charged with a Class 1 misdemeanor. For the second or subsequent offense, the minor will be charged with a Class H felony. When teens consensually share nude images with one another, regardless of whether it is their first violation, they could be charged with a Class C, E, or H felony.7 Logically, it does not make sense that teens who violate the Revenge Porn Law receive a less severe punishment than teens charged under child pornography laws for consesually sexting. Sexting is not harmful in itself, but it is when it become revenge porn. Therefore, it would make more sense for sexting between minors to have a less severe penalty than revenge porn.

Retrieved from Pixabay.

Will “Raise the Age” fix this issue?

There has been movement away from charging minors as adults with the passage of the Juvenile Justice Reinvestment Act. However, a minor between the ages of sixteen and seventeen who is charged with the sexual exploitation of a minor will still be tried as an adult, and be required to register as a sex offender. Under “Raise the Age,” jurisdiction of a court case will be transferred from juvenile court to superior court if the juvenile’s alleged offense constitutes a felony ranging from Class A to Class I.6 Since a Class C, E, or H felony is the charge for sexual exploitation of a minor, superior court will try minors age sixteen and older who sext as adults. Therefore, minors who are convicted with a Class C, E, or H felony will still have to register as a sex offender.

Future Action

The General Assembly will need to discuss developing explicit laws regarding sexting among minors during future sessions. As an advocate, you can contact your representative in the General Assembly to discuss the need to develop specific legislation that does not criminalize sexting among minors. Otherwise, the legal system will continue to charge teenagers between the ages of sixteen and seventeen who consent to sending, sharing, and receiving nude photographs with felonies.